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New parents now have new rights: changes to parental leave

On 1 October 2012, the remaining provisions of the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measure) Act 2012 (Act) commence, giving rise to new rights of employees who have become parents and associated rights for employers. We set out below some important changes to parental leave.

Dad and Partner Pay

Employees who become parents to a baby born or a child adopted on or after 1 January 2013 and who take unpaid time off during the first 12 months after the birth or adoption, may be eligible for government-funded Dad and Partner Pay of up to 2 weeks at the National Minimum Wage (which is currently $606.40 per week), under the Australian Government Paid Parental Leave Scheme.

Employees who will be eligible include biological fathers, partners of the birth mother, adopting parents and their partners, parents and their partner in a surrogacy arrangement and same sex partners, who are caring for the baby or child (either through primary care or joint care). However, the employee must be an Australian resident and meet the same income and work tests that apply to the current Parental Leave Pay.

Claims for Dad and Partner Pay can be made by eligible employees from 1 October 2012.

Keeping in Touch Days

In July this year, the Act also amended the Fair Work Act 2009 (Cth) (FW Act) by introducing a new right for employees who are on unpaid parental leave. Employees on unpaid parental leave can now perform paid work on up to 10 “keeping in touch days” without breaking the continuity of the period of parental leave, provided that:

the purpose of performing the work is to enable the employee to keep in touch with their employment in order to facilitate their return to work at the end of the leave period;

both the employee and employer consent; and

the days are taken at least 42 days after the birth or placement of the child, unless an employee requests to take the day earlier, in which case it cannot be within 14 days of the birth or placement.

Keeping in touch days will not extend the period of the employee’s unpaid parental leave and can be worked 1 day at a time or all together. The employee must be paid for any work performed at their normal rate of pay.

When can pregnant employees commence unpaid parental leave?

The FW Act provides that a pregnant employee can now commence their unpaid parental leave period earlier than 6 weeks before the expected date of birth, with the employer’s agreement.

Cancelling leave and returning to work early

Under the FW Act, there are now provisions allowing an employee to unilaterally cancel their unpaid parental leave and return to work. Previously, the employer had to agree to any request for an early return. This can now occur in the unfortunate case of a stillbirth or infant death in which case the employee can return to work within 4 weeks of giving notice to the employer.

Replacement employees

Employers must now also notify any employee engaged to replace an employee who is going to take or is taking unpaid parental leave that:

the engagement is temporary;

both the employer and employee taking unpaid parental leave have the right to cancel the leave before it starts or end the leave early in the unfortunate case of a stillbirth or infant death;

the employee taking unpaid parental leave has the right to return to work to their pre-parental leave position.

Implications for employers

Given the above changes, it is important for all employers to review their parental leave policies to ensure they adequately provide for these changes and that the business is complying with the FW Act when managing employees who propose to take or are taking unpaid parental leave.